BRB No. 99-1144 BLA
LONNIE J. MATNEY )
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Claimant-Petitioner )
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v. ) )
GARDEN CREEK POCAHONTAS ) DATE ISSUED:08/04/2000
COMPANY )
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Employer-Respondent )
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DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
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Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Lawrence P. Donnelly, Administrative Law Judge, United States
Department of Labor.
Lonnie J. Matney, Hurley, Virginia, pro se.[1]
Douglas A. Smoot and Kathy L. Snyder (Jackson & Kelly PLLC), Morgantown, West Virginia, for
employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative Appeals Judge, and
NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant, without the assistance of counsel, appeals the Decision and Order (98-BLA-0858) of Administrative
Law Judge Lawrence P. Donnelly (the administrative law judge) denying benefits on a duplicate claim[2] filed pursuant to the provisions of Title IV of the Federal Coal Mine
Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the Act). The administrative
law judge credited claimant with approximately thirty-seven years of coal mine employment and adjudicated this duplicate
claim pursuant to the regulations contained in 20 C.F.R. Part 718. The administrative law judge found the newly
submitted evidence insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R. §718.202(a)(1)-(4). The administrative law judge also found the newly submitted evidence insufficient to establish total disability
pursuant to 20 C.F.R. §718.204(c)(1)-(4). Consequently, the administrative law judge concluded that the evidence
is insufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309. Accordingly, the
administrative law judge denied benefits. On appeal, claimant generally challenges the administrative law judge's denial
of benefits. Employer responds, urging affirmance of the administrative law judge's Decision and Order. The Director,
Office of Workers' Compensation Programs, has declined to participate in this appeal.[3]
In an appeal filed by a claimant without the assistance of counsel, the Board considers the issue raised on appeal
to be whether the Decision and Order below is supported by substantial evidence. See McFall v. Jewell
Ridge Coal Corp., 12 BLR 1-176 (1989); Stark v. Director, OWCP, 9 BLR 1-36 (1986). We must
affirm the administrative law judge's Decision and Order if the findings of fact and conclusions of law are rational,
supported by substantial evidence, and in accordance with law. 33 U.S.C. §921(b)(3), as incorporated into the
Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359
(1965).
Claimant's previous claim was denied because he failed to establish the existence of pneumoconiosis and total
disability. Director's Exhibit 28. The administrative law judge stated that because "the record is somewhat ambiguous
as to whether the Claimant last performed coal mine work in Pennsylvania (DX 4), Virginia (DX 3), or Kentucky (DX
2)..., it is unclear whether this case arises in the Third, Fourth, or Sixth Circuit."[4] Decision and Order at 7. However, the administrative law judge, citing Lisa Lee Mines v.
Director, OWCP [Rutter], 86 F.3d 1358, 20 BLR 2-227, (4th Cir. 1996), rev'g en banc,
57 F.3d 402, 19 BLR 2-223 (4th Cir. 1995), Labelle Processing Co. v. Swarrow, 72 F.3d 308, 20 BLR 2-76
(3d Cir. 1995), and Sharondale Corp. v. Ross, 42 F.3d 993, 997, 19 BLR 2-10, 2-18 (6th Cir. 1994), stated
that "all three of these circuits have adopted the same standard for finding a 'material change in conditions.'"
Id. As noted by the administrative law judge, the courts in these circuits have held that an administrative
law judge must consider all of the new evidence, favorable and unfavorable to claimant, and determine whether the miner
has proven at least one of the elements of entitlement previously adjudicated against him to assess whether the evidence
is sufficient to establish a material change in conditions pursuant to 20 C.F.R. §725.309(d). See Rutter,
supra; Swarrow, supra; Ross, supra. Thus, inasmuch as the administrative law judge
properly considered the issue of whether claimant established a material change in conditions at 20 C.F.R.
§725.309 in accordance with the one-element standard, we hold that any error by the administrative law judge in
failing to render a specific determination with respect to the state where claimant performed his most recent coal mine
employment is harmless. See Larioni v. Director, OWCP, 6 BLR 1-1276 (1984); see also
Shupe v. Director, OWCP, 12 BLR 1-200 (1989)(en banc). Consequently, in order to establish
a material change in conditions at 20 C.F.R. §725.309, the newly submitted evidence must support a finding of
either the existence of pneumoconiosis at 20 C.F.R. §718.202(a) or total disability at 20 C.F.R.
§718.204(c).
In finding the newly submitted evidence insufficient to establish the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(1), the administrative law judge considered the newly submitted x-ray evidence. Of the fifteen newly
submitted x-ray interpretations of record, eleven readings are negative for pneumoconiosis, Employer's Exhibits 1-3,
5, 7-9, 12, and four readings are positive, Director's Exhibits 12-14; Employer's Exhibit 4. In addition to noting the
numerical superiority of the negative x-ray readings, the administrative law judge also considered the qualifications of
the various physicians.[5] See Woodward v. Director,
OWCP, 991 F.2d 314, 17 BLR 2-77 (6th Cir. 1993); Sahara Coal Co. v. Fitts, 39 F.3d 781, 18 BLR
2-384 (7th Cir. 1994). Thus, inasmuch as it is supported by substantial evidence, we affirm the administrative law
judge's finding that the newly submitted evidence is insufficient to establish the existence of pneumoconiosis at 20 C.F.R.
§718.202(a)(1).
Next, we affirm the administrative law judge's finding that the newly submitted evidence is insufficient to
establish the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(2) since there is no biopsy or autopsy evidence
demonstrating the existence of pneumoconiosis. In addition, we affirm the administrative law judge's finding that the
newly submitted evidence is insufficient to establish the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(3)
since none of the presumptions set forth therein is applicable to the instant claim. See 20 C.F.R.
§§718.304, 718.305, 718.306. The presumption at 20 C.F.R. §718.304 is inapplicable because there
is no evidence of complicated pneumoconiosis in the record. Similarly, claimant is not entitled to the presumption at
20 C.F.R. §718.305 because he filed his claim after January 1, 1982. See 20 C.F.R.
§718.305(e); Director's Exhibit 1. Lastly, this claim is not a survivor's claim; therefore, the presumption at 20
C.F.R. §718.306 is also inapplicable.
Further, the administrative law judge found the newly submitted evidence insufficient to establish the existence
of pneumoconiosis at 20 C.F.R. §718.202(a)(4). The administrative law judge considered the opinions of Drs.
Fino, Forehand, Dahhan, Hippensteel and Jarboe. Whereas Dr. Forehand opined that claimant suffers from
pneumoconiosis, Director's Exhibit 10, Drs. Fino, Dahhan, Hippensteel[6]
and Jarboe opined that claimant does not suffer from pneumoconiosis, Employer's Exhibits 4, 6, 10, 11, 13, 15.
Inasmuch as four of the five physicians of record, who provided newly submitted medical reports, opined that claimant
does not suffer from pneumoconiosis, we affirm the administrative law judge's finding that the newly submitted evidence
is insufficient to establish the existence of pneumoconiosis at 20 C.F.R. §718.202(a)(4). See Director, OWCP
v. Greenwich Collieries [Ondecko], 512 U.S. 267, 18 BLR 2A-1 (1994), aff'g Greenwich Collieries v.
Director, OWCP, 990 F.2d 730, 17 BLR 2-64 (3d Cir. 1993).
With regard to 20 C.F.R. §718.204(c), the administrative law judge found the newly submitted evidence
insufficient to establish total disability. Since none of the newly submitted pulmonary function studies of record yielded
qualifying[7] values, Director's Exhibit 9; Employer's Exhibit 4, we
affirm the administrative law judge's finding that the newly submitted evidence is insufficient to establish total disability
at 20 C.F.R. §718.204(c)(1).
In finding the newly submitted evidence insufficient to establish total disability at 20 C.F.R.
§718.204(c)(2), the administrative law judge considered the newly submitted arterial blood gas studies dated
November 26, 1997 and April 22, 1998. While the April 22, 1998 study yielded non-qualifying values at rest and during
exercise, Director's Exhibit 4, the November 26, 1997 study yielded non-qualifying values at rest and qualifying values
during exercise, Director's Exhibit 11. Inasmuch as the administrative law judge rationally found that "the
preponderance of the newer arterial blood gas tests, including the most recent, are...not qualifying," Decision and Order
at 9, we affirm the administrative law judge's finding that the newly submitted evidence is insufficient to establish total
disability at 20 C.F.R. §718.204(c)(2). See Ondecko, supra. Additionally, we affirm the
administrative law judge's finding that the newly submitted evidence is insufficient to establish total disability at 20
C.F.R. §718.204(c)(3) since the record does not contain evidence of cor pulmonale with right sided congestive
heart failure.
Finally, we address the administrative law judge's finding that the newly submitted evidence is insufficient to
establish total disability at 20 C.F.R. §718.204(c)(4). The administrative law judge considered the newly
submitted opinions of Drs. Fino, Forehand, Dahhan, Hippensteel and Jarboe. Drs. Fino, Forehand, Dahhan, Hippensteel
and Jarboe opined that claimant does not suffer from a disabling respiratory impairment. Director's Exhibit 10;
Employer's Exhibits 4, 6, 10, 11, 13, 15. Since none of the physicians opined that claimant suffers from a disabling
respiratory or pulmonary impairment, we affirm the administrative law judge's finding that the newly submitted evidence
is insufficient to establish total disability at 20 C.F.R. §718.204(c)(4). See Beatty v. Danri Corp. and
Triangle Enterprises, 16 BLR 1-11 (1991).
Since the newly submitted evidence is insufficient to establish the existence of pneumoconiosis at 20 C.F.R.
§718.202(a) and total disability at 20 C.F.R. §718.204(c), we affirm the administrative law judge's finding
that claimant failed to establish a material change in conditions at 20 C.F.R. §725.309. See
Ross, supra.
Accordingly, the administrative law judge's Decision and Order denying benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)Ron Carson, a benefits counselor with Stone Mountain Health Services of Vansant, Virginia,
requested on behalf of claimant that the Board review the decision of Administrative Law Judge Lawrence P. Donnelly.
In a letter dated August 10, 1999, the Board stated that claimant would be considered to be representing himself on
appeal. See Shelton v. Claude V. Keen Trucking Co., 19 BLR 1-88 (1995)(Order).
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2)Claimant filed his initial claim on September 7, 1994. Director's
Exhibit 28. On October 13, 1995, Administrative Law Judge Robert G. Mahony issued
a Decision and Order denying benefits. Id. The bases of Judge Mahony's
denial were claimant's failure to establish the existence of pneumoconiosis and
total disability. Id. Inasmuch as claimant did not pursue this claim any
further, the denial became final. Claimant filed his most recent claim on November
12, 1997. Director's Exhibit 1.
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3)Inasmuch as the administrative law judge's length of coal mine
employment finding, which is not adverse to this pro se claimant, is not
challenged on appeal, we affirm this finding. See Skrack v. Island Creek Coal
Co., 6 BLR 1-710 (1983).
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4)The record indicates that claimant lives in Hurley, Virginia, and
that employer's claims agent, Employers Service Corporation, is located in
Charleston, West Virginia. However, the record does not indicate that claimant
performed his most recent coal mine employment in either Virginia or West Virginia.
While the Social Security Administration Itemized Statement of Earnings lists
Pittsburgh, Pennsylvania as employer's address, Director's Exhibits 5, 28,
Employment History forms dated August 22, 1994 and November 4, 1997 list Lexington,
Kentucky as employer's address, Director's Exhibits 2, 28. Further, a Department
of Labor form, which was neither signed nor dated, indicates that Lexington,
Kentucky was the mine site where claimant performed his most recent coal mine
employment for employer from January 1982 until May 1994. Director's Exhibit 6.
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5)The administrative law judge stated that "the majority of the
recent x-ray interpretations, including those by dual qualified B-readers and
Board-certified radiologists, are negative for pneumoconiosis." Decision and Order
at 8.
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6)The administrative law judge stated that "Drs. Dahhan, Jarboe, and
Fino clearly and unequivocally found that neither the radiological nor the
physiological evidence warranted a finding of pneumoconiosis, as defined in [20
C.F.R.] §718.201." Decision and Order at 8. In contrast, the administrative
law judge stated that "Dr. Hippensteel's opinion is somewhat ambiguous regarding
the pneumoconiosis issue." Id. The administrative law judge observed that
"[o]n the one hand, Dr. Hippensteel's x-ray reading is positive for pneumoconiosis
under the classification requirements of [20 C.F.R.] §718.102(b)." Id.
The administrative law judge also observed that "[o]n the other hand, Dr.
Hippensteel found the x-ray evidence to be inconsistent with coal workers'
pneumoconiosis, and he did not attribute any respiratory or pulmonary impairment
to Claimant's coal mine dust exposure." Id. However, an x-ray report, in and of itself,
does not qualify as a medical report at 20 C.F.R. §718.202(a)(4). See Anderson v. Valley Camp of Utah,
Inc., 12 BLR 1-111 (1989). Hence, an administrative law judge is not required to find that a miner suffers from
pneumoconiosis based on a positive x-ray interpretation. Nonetheless, inasmuch as the administrative law judge
rationally found that the newly submitted evidence is insufficient to establish the existence of pneumoconiosis at 20
C.F.R. §718.202(a)(4), we hold that any error by the administrative law judge with regard to his weighing of the
opinion of Dr. Hippensteel is harmless. See Larioni, supra.
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7)A "qualifying" pulmonary function study or blood gas study yields values that are equal to or
less than the appropriate values set out in the tables at 20 C.F.R. Part 718, Appendices B and C, respectively. A "non-qualifying" study exceeds those values. See 20 C.F.R. §718.204(c)(1), (c)(2).
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NOTE: This is an UNPUBLISHED BLA Document.
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